dissenting.
■ I respectfully dissent. A rigid view of the doctrines involved in our brand of federalism dictates the result expressed in the majority opinion. It expresses, no opinion on the effects of a former finding of not guilty upon the doctrine of dual sovereignty. That situation is distinguished from a former finding of guilt and fixing of punishment. The majority justify a second prosecution after a valid former conviction and sentence on the ground that it is a “vindication of the public policy of Nebraska.” ■
The ancient Latin maxim of the common law wa's *493translated: “No one can be twice punished for the same crime or misdemeanor.” In the early days of this country, the Supreme Court expressed its understanding of the doctrine of former jeopardy. “The common law not only prohibited a second punishment for the same ofr fense, but it went further and forbid a . second trial for the same offense, whether the accused had suffered punishment or not, and whether in the former trial he had .been acquitted or convicted.” Ex parte Lange, 85 U. S. (XVIII Wall.) 163 at page 169, 21 L. Ed. 872.
, There can be little question that at common law no one could be twice punished for the same offense whether the former trial was by the same jurisdiction or not. The dual sovereignty doctrine emerged as a protection of our distinctive brand of federalism. It is ironic that the federalism inspired by a desire for constitutional guarantees of the rights of individuals should itself provide the reasons for disregarding its own guarantees against double jeopardy.
There have been clear indications that the doctrinal bases of Bartkus v. Illinois, 359 U. S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684, have been substantially undercut and practically overruled. See, for example, Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653; Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106; Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707; Murphy v. Waterfront Commission of New York, 378 U. S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678.
•' In the case before us, the punishment imposed by the federal court amounted to three life sentences for all practical purposes. It is beyond any dispute, therefore, .that the prosecuting authority of Nebraska regards death as the only sufficient punishment in this case. The •final punishment meted out by the federal court has been deemed insufficient. That sort of interpretation of the doctrine of dual,, sovereignty puts the- federal and state governments in the position of competing with *494each other. Each branch of government determines whether the punishment meted out by the other branch of government shall be deemed sufficient and whether the protection against double jeopardy and punishment shall be granted or withheld. That determination rests with the prosecutor and stems from an interpretation of public policy, not from the Constitution nor from the common law.
The public policy of Nebraska ought not to be “vindicated” at the expense of fundamental and traditional concepts of former jeopardy and due process. Common law protections against double jeopardy and punishment, as well as constitutional provisions, ought not to be ignored to justify and preserve a competitive policy of retribution and punishment under our unique form of federal democracy.